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What Does Advance Directive Mean?

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At certain stages of life, whether due to aging, illness, debilitation, or accidents, the capacity to manage affairs may be lost. Understanding this reality and planning before a medical crisis strikes is essential.

You can begin estate planning and have critical documents in place, such as an advance health care directive. Proper planning ensures care and treatment follow your wishes.

What Happens Without an Advance Directive?

Kevin stands at the door of Winnie’s nursing home room, tears streaming down his face. The medical staff just finished inserted a feeding tube into Winnie – an act Kevin knew she didn’t want. Unfortunately, Winnie couldn’t express her wishes due to advanced dementia, and she had no legal documents that expressed her wishes not to be fed by artificial means. Kevin had no choice but to sit back and watch his wife go through a procedure that would unnecessarily prolong her suffering.

Kevin and Winnie could have avoided this situation with an advance directive, a collection of documents, including a:

  • Living will (decisions you make about end-of-life treatment and care)
  • Health care power of attorney (proxy or surrogate)
  • HIPAA release form (medical history)

The purpose of this set of documents is to give you control over what happens when you can’t speak for yourself. If certain criteria are met, your doctors must consult with your advance directive and health care power of attorney before making decisions about life-sustaining treatment.

Situations Triggering Your Advance Directive

Usually, two doctors agree on a diagnosis when a person is terminally ill, permanently unconscious, or at the end-stage of life. Once that happens, and the individual can’t express their preferences, doctors turn to the advance directive to figure out the best course of action.

Medical staff are required to prolong life at all costs, which often leads to artificial hydration, feeding, and breathing tubes regardless of your outlook for recovery. Discussions with family members may raise more questions than answers without a written plan. Your loved ones may agonize over difficult decisions, wondering what you truly wanted.

A Living Will

A living will determines what happens to you in a medical emergency, unlike a Last Will and Testament, which determines what happens to money and possessions after death. A living will describes what health care providers can and can’t do to prolong your life or ease your pain when you can’t express decisions yourself. For example:

  • Do you want to be placed on a ventilator if you can’t breathe on your own?
  • Do you want a feeding tube and IVs set up, and if so, for how long?
  • Do you want to be an organ or tissue donor?

A Health Care Power of Attorney

A health care power of attorney may also be called a health care proxy or surrogate. It lets you choose someone to make health care decisions for you. They must follow instructions in your living will, and can make decisions not explicitly stated by your living will, based on medical history (if they are listed on a HIPAA release) and facts of the situation. In most states, default surrogate consent laws may allow family members to make treatment decisions on your behalf, but who is chosen and what they decide may not follow your wishes.

Other documents you may include in your advance directive are Do Not Resuscitate (DNR) orders and Physician Orders for Life-Sustaining Treatment (POLST), among others. You might also consider decisions in a mental health crisis.

This is a difficult subject to discuss with loved ones. But nearly 70 percent of Americans don’t have plans in place for a worst-case scenario, leaving others to choose for them. It may not align with their thoughts or beliefs about end-of-life care.

If you or a loved one would like more information about advance directives, please don’t hesitate to reach out to our estate planning law firm today. We are dedicated to preparing individuals and families for life’s challenges.

Contact our Ruston, LA office by calling us at (318) 255-1760 today and schedule an appointment to discuss how we can help you with your planning.

Preparing a Living Will

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In the event that you are incapable of communicating or making decisions for yourself, a living will outlines your end-of-life care and medical treatment preferences. Everyone should have an advance directive, as end-of-life situations can happen at any age due to an accident or illness.

Living Will

This legal document identifies medical treatments you would or would not accept to keep you alive and may include other medical decisions, such as pain management and organ donation. Consider how important self-sufficiency and independence are to you and what circumstances may make you feel life is no longer worth living. Do you want to be alive at all costs in any situation, or would you only want treatment if a cure exists?

You can address several possible end-of-life care scenarios in your living will, including:

  • Cardiopulmonary resuscitation (CPR) – Restarts the heart when it has stopped beating and can be done manually (chest compressions) or mechanically (defibrillator).
  • Mechanical ventilation – Takes over the job of breathing if you can’t breathe on your own.
  • Tube feeding – Supplies the body with fluids and nutrients intravenously or through a tube in the stomach.
  • Dialysis – Manages fluid levels and removes waste from your blood if your kidneys do not function.
  • Antibiotics or antiviral medications – Treats many infections. Would you prefer the infection to run its course or aggressively use pharmacy treatments if you are near the end of your life?
  • Palliative or comfort care – Includes various ways to keep you comfortable, managing pain while abiding by other designated treatment choices. You may choose to die at home or receive strong pain medications, avoiding other invasive treatments or tests.
  • Organ and tissue donation – Permits temporary life-sustaining treatment until the organ removal procedure is complete.
  • Donating your body to science – Makes your body available for scientific study at a medical school or university program.

Durable Medical Power of Attorney

Naming a health care or medical power of attorney is a type of advance directive. They name a health care advocate to make medical decisions for you. Depending on where you live, a durable medical power of attorney may be called an agent, proxy, surrogate, or advocate.

State laws regarding living wills vary from one jurisdiction to another. Following state legal requirements and guidelines is imperative to ensure your living will is valid. Retaining the services of an elder law attorney or estate planning attorney can ensure your living will complies with laws in your state, such as witnessing and notarizing your documents.

Selecting the right individual to act as your medical power of attorney is important since it’s impossible to anticipate every situation, and your health care agent may have to make a judgment about your care wishes. Your attorney may encourage you to select one or more alternates in case your first choice can’t fulfill the role. Select a medical power of attorney that meets the following criteria:

  • They meet your state’s health care agent requirements
  • They are not your physician or a part of your medical team
  • They are willing and capable of discussing medical care and end-of-life issues with you
  • They have your trust to make decisions that adhere to your values and wishes
  • They are trusted to advocate on your behalf if there are disagreements about your care

Orders to Refuse Resuscitation or Intubation

A do not resuscitate (DNR) and do not intubate (DNI) order is not part of an advance directive or living will. To establish your preferences, speak to your doctor, who can make them as part of your medical record. Although you may have a living will preference that addresses DNR and DNI orders, have a physician create these individual documents each time you’re admitted to a new health care facility or hospital.

Physician Orders for Life-sustaining Treatment (POLST)

Some states include a provider order for life-sustaining treatment (POLST) or medical order for life-sustaining treatment (MOLST) document as part of an advance health care directive.

They address patients who are already diagnosed with a serious illness. While this form doesn’t replace your directives, it provides instructions for the doctor that reflect the treatment you prefer. Your doctor fills out the form based on conversations you’ve had about the likely course of your illness and advance directive treatment preferences.

Creating Advance Directives

After reflecting on your choices for a living will, meet with your doctor and attorney, who can help you create the written content for an advance directive. States have specific forms, and your lawyer can help to ensure the forms are correctly filled out, as some may require a witness or notary.

Once your documents are complete, take the following steps:

  • Keep the originals in an easily accessible but safe location.
  • Provide a copy to your doctor.
  • Provide a copy to your health care agent and any alternate agents.
  • Keep a list of the people who have your advance directives.
  • Talk to your family and other loved ones about your health care wishes to provide clarity to family members to prevent conflict or guilt during difficult times.
  • Carry a wallet-sized card indicating you have advance directives, your health care agent, and the state(s) location where your directives are.
  • Travel with a copy of your advance directive.

Regular Review and Changes to Advance Directives

You can change your directives whenever you wish if you are of sound mind. You must create a new advance directive form, distribute the new copies to the appropriate individuals, and destroy all old copies. Some states have specific requirements for changing directives, so consult your attorney about relevant laws.

Discuss any directive changes with your primary care physician. Add these new medical directives to hospital or nursing home charts and make sure your health care agent, family, and friends know of the changes.

Review and make changes to your directives in case of a new diagnosis, a marital status change, or about every five years. Regular review of your living will ensures it still reflects your wishes and is up to date.

This article offers a summary of aspects of estate planning. It is not legal advice and does not create an attorney-client relationship. For legal advice, contact our Ruston, LA office by calling us at (318) 255-1760.

Your Estate Plan Need to Include These 5 Components

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The need for estate planning becomes more and more critical as we age. Many people avoid estate planning because they do not want to think about the end of life, failing health, or disability. Others believe that an estate plan is only for rich people. However, an estate plan is helpful for the senior adult and their families regardless of overall wealth.

The estate is all the property owned both individually and jointly, including bank accounts, real estate, jewelry, etc., and what is owed. Without an estate plan, it is very difficult to carry out a person’s wishes and can bring on a long, drawn-out probate that can be very expensive for the family. If an estate plan is in place, it can provide peace of mind for the senior adult and their family, as well as protection for the wishes of the senior.

Below are some basic guidelines for what should be included in an estate plan.

  1. Will. A will provides for an executor of the estate, who will take care of managing the estate, paying debts, and distributing property as specified. The distribution of assets can be outlined in the will. This can be as broad or detailed as a person wishes. In a will, beneficiaries and guardians for minor children should be assigned. It may not seem necessary to discuss minor children when discussing seniors and estate planning, but with the rise of grandparents raising grandchildren, this may indeed be an important part of the will. A senior adult can spell out, in the will, how they want their funeral and burial to be carried out as well.
  1. Living Will. A living will outlines a senior’s wishes for end-of-life medical care. It can include, in as much detail as the senior wishes, what medical treatments the senior would or would not like to have in specific situations. A living will takes the stress of making those decisions off of family members and helps to keep peace in families during times that can be difficult and emotional.
  1. Healthcare Power of Attorney. A healthcare power of attorney is also a key part of an estate plan. This legal document provides for someone to legally make healthcare decisions for a senior adult. A durable power of attorney will remain in effect for the senior if the senior becomes unable to make decisions.
  1. Financial Power of Attorney. A financial power of attorney names an agent who has the power to act in the place of the senior adult for matters relating to finances. The durable financial power of attorney stays in effect if the senior adult becomes unable to handle their affairs. By having a financial power of attorney in place, the stress and expense of a guardianship can be avoided, and the senior has the final say in who will make decisions relating to finances.
  1. Trust. Setting up a trust can be beneficial for the distribution of specific assets or pieces of property. The benefit of a trust is that it does not go through probate, as compared to a will. Property is still distributed at the death of the trustmaker, but it is done without the need of a court. This also allows for privacy of the trustmaker, where with a will and a probate, all of the deceased person’s assets and the terms of their will is made public.

Having an estate plan is necessary if you or your senior loved one wishes to have a say in what happens at the end of life and with assets after death. Consulting and planning with an elder law attorney will help to ensure that all options are explored and the best possible solution is utilized. The elder law attorney can walk you through all of the necessary parts of the estate plan, provide an explanation, and prepare the paperwork. Elder law attorneys will help take the guesswork out of estate planning.

If you have any questions about something you have read or would like additional information, please feel free to contact us. Please contact our Ruston, LA office by calling us at (318) 255-1760 or schedule an appointment to discuss how we can help with your long-term care needs.